01 July 2009

Very Theoretical Law Scholarship

Despite the fact that my dear wife taught Women's Studies to college students shortly before and after we got married, I remain stunned at the breadth of topics that constitute legal scholarship. For example, this recent article:

This Article elaborates some aspects of everyday naming practices involving social identity and kinship, in order to assist us in understanding the injury that comes from mandating two distinct names for the core family relationship. It considers (1) the problem of family identity underlying Juliet’s 'What’s in a name' soliloquy in William Shakespeare’s play Romeo and Juliet; (2) Louis Althusser’s concept of interpellation; (3) the feminist critique of language and names, focusing in particular on the 'Miss'/'Mrs.'/'Ms.' controversy; and (4) the way in which concrete, diffuse, everyday social practices of naming and recognition are multiscalar, and interact with larger legal and social structures around recognition, dominance, and subordination. With these considerations in mind, it is easier to see that the 'civil union'/'marriage' distinction has a cultural meaning that will create a stigmatic injury by reinforcing and activating dormant, dispersed sites of stereotyping and prejudice against gays and lesbians.

I'm pretty sure that I haven't used the word "multiscalar" since I taught myself linear algebra in high school, if ever, and I'm not at all convinced that it means that same thing in this context. Still, it is interesting the someone writes about this for a living and that someone else decided to published it.

My own scholarly interests run more to this article on the failure of judicial reform in Mongolia, an interest which is also a function of having spent time with a Mongolian exchange student who is involved in the Mongolian legislative process not so long ago.

Also, fascinating is a recent paper by Harry Surden of the University of Colorado Law School, whose abstract begins:

This Essay challenges the view that privacy interests are protected primarily by law. Instead, I argue that much of society's privacy is protected implicitly by transaction costs.

The article goes on to argue that the demises of transaction costs as a result of new technologies makes legal regulation of privacy that was previously unnecessary due to transaction cost burdens appropriate to consider now.

1 comment:

What Surden refers to as "transaction costs" (which they are) I've always referred to as a requirement for human-to-human contact. E.g. I object to red-light cameras for two reasons: 1) the camera cannot judge context the way a human police officer can, and 2) multiple cameras across town can log time and location of citizens in an automated fashion that humans alone cannot.

There is another significant loss of privacy due to technology that is outside the scope of Surden's paper. That is the sociological race to the bottom. People who refuse to publish their lives on Facebook (or a blog) are at a disadvantage in social and business realms.